S (Children) [2014] EWCA Civ 1447

Permission to appeal (with appeal to follow, if granted) findings of fact made in a non- accidental injury case

The trial Judge had made findings of fact in respect of bruising and fractures suffered by a child "R".

A single judge had listed the father's appeal (supported by the mother) for a "rolled up" permission and substantive hearing in front of a full court.

An application was also made to admit fresh medical evidence; this was dismissed without hesitation by the appellate court with Lady Justice Macur commenting that the contents of the letter involved were largely irrelevant to the issues in hand.

The appeal against the findings was advanced on four grounds, all of which the court found to be without merit.

Macur LJ considered that the judge at first instance had not, as argued, reversed the correct burden of proof by adopting a "linear process." The use of the term "linear" may have been drawn from jurisprudence in respect of welfare evaluations but its use was unhelpful and potentially confusing in the "arena of fact -finding". The judge had identified and applied the test correctly.

Nor had the judge failed to adequately reflect the inherent improbability of the parents having caused the injuries. Previous good parenting, if prayed in aid in terms of probability, could not be determinative in the absence of context. In this case, the court had ample evidence of parental mental ill health impacting on their functioning.

As to the contention that the judge had failed to have regard to the first instance case of Re ED (put forward as a "persuasive authority"), the matter was fact specific and it was not appropriate to seek to rely on such decisions as authority for principles.

Lastly, the judge had not failed to reach conclusions in accordance with the weight of the evidence. Whilst he had clearly not made findings that accorded with the arguments put forward by the parents at first instance, the appellant had identified no areas where the judge had wrongly included or excluded relevant material. His analysis and conclusions were unimpeachable.

Having disposed of the merits of each ground, in order for the parents to understand that the court had considered the criticisms set out in the notice of appeal, the court did nevertheless go on to consider the specific points advanced in relation to the evidence for each injury. In respect of the bruising, skull, rib and wrist fractures, the judge had correctly evaluated the medical evidence and had made findings in accordance with the evidence.

Finally, Lady Justice Macur commented on the Notice of appeal and the skeleton argument, the construction of which, and use of florid assertions within, had obfuscated the lack of substance in the application. Her Ladyship indicted that it was a matter of regret that a full court day for three judges had been taken up with this matter.

Judgment Lady Justice Macur DBE : 1. The father's application for permission to appeal with appeal to follow if granted was listed before the full court at the direction of the single judge. An application to admit fresh evidence was received on 15 October 2014. Both applications were dismissed with reasons to follow.

2. The application to admit "fresh" evidence related to a letter dated 25 September 2014 sent to a GP from Dr Peter Turnpenny, Consultant Clinical Geneticist and Honorary Associate Professor. The substance of the letter concerns K and is reliant on the reported concerns of the parents. Reference to R is in passing.

3. The content of the letter in its present form has no impact whatsoever upon any of the issues raised in the proposed grounds of appeal. This is sufficient reason to dismiss the application without the necessity to make further reference to CPR 52.11 (2) (b) or the 'Ladd v Marshall' principles.

4. The proposed appeal seeks to set aside the findings of HHJ Tyzack QC, sitting as a deputy high court judge, on 29 November 2013 to the effect that R born on the 23 May 2012 had sustained non accidental injuries including bruising to his upper and lower limbs and fractures to his skull, ribs and left radius.

5. The mother supports the application. She and the father have common cause.

6. The father was represented by Mr Feehan QC and Mr Butterfield at this court and below. The local authority was represented by Miss Bazley QC and Ms Ingham, the latter of whom appeared at first instance. Counsel for the Children's Guardian, Miss Cook QC was excused attendance in this court with a view to saving the public purse, but prepared a skeleton argument which has provided considerable assistance to us.

7. There are four grounds of appeal. It is claimed that the judge (i) failed to apply the correct burden of proof; (ii) failed to adequately reflect the inherent probability of these parents causing non accidental injury to their youngest son; (iii) failed to have adequate regard to the "persuasive authority of Re ED [2013] EWHC 968 (Fam); (iv) failed to reach conclusions which accorded with the weight of the evidence.

8. As to (i): Mr Feehan argues that despite his articulated and unimpeachable self direction as to the burden of proof, the judge adopted a different rationale which he describes as a "linear" process which thereby reverses the burden of proof, citing Rhesa Shipping Co SA v Edmond and Another: The Popi M [1985] 1 WLR 948.

9. His submissions reveal a misunderstanding or at least a misapplication of authority to the facts in this case. Lord Brandon's speech in Rhesa does not support a contention that to eliminate all explanations to the exclusion of one will have the effect of reversing the burden of proof, unless the single explanation which does remain is extremely improbable. Mr Feehan's use of the term "linear" may well be drawn from recent family jurisprudence concerning welfare evaluations. It is distinctly unhelpful and potentially confusing in the arena of judicial fact finding.

10. The judge correctly identified that it was for the local authority (i) to disprove the possible explanations for injury, whether accidental or congenital and (ii) establish that, on the balance of probabilities, the whole of the evidence led to the conclusion that the injuries were non accidental rather than simply incapable of being explained otherwise.

11. This process he demonstrably and diligently executes throughout his analysis of the medical and expert evidence in the established factual context of the case. The fact that his judgment record that he excludes possible accidental and congenital explanations is inevitable. This does not equate with the situation arising in RE M (Fact Finding Hearing : Burden of Proof) [2012] EWCA Civ 1580 where the absence of the parents credible explanation for non specific bruising of indeterminate causation led the judge to decide the case on the basis of an adverse inference Mr Feehan's attempts to demonstrate an error in the judge's approach conspicuously fails. There is no merit in this ground of appeal.

12. As to (ii): Mr Feehan argues that the judge failed to incorporate "the inherent improbability" of these parents injuring their child into the balance. This argument is demonstrably misconceived. The judge recorded the parent's apparent aptitude for child care in difficult circumstances and their undoubted affection for their children. However, this feature he had to balance against what he found to be stresses occasioned by parental mental ill health and consequent strains upon the parent's relationship. Previous good child care cannot be a determinative factor absent factual context. Re R [2013] EWCA Civ 899 should be seen in its proper context. The first instance judge declined to/ or did not receive evidence concerning the mother's "state of mind or motivation" which would enable her to displace the "inherent probability" of an otherwise model mother deliberately scalding her child. In this case the judge had ample evidence of both parent's mental ill health and the consequences upon their functioning and relationship. This is more than amply reported throughout the judgement at paragraphs 161 to 176, 178, 191 and 194. This ground of appeal has no merit.

13. As to (iii): Mr Feehan's written submissions clearly seek to elevate the first instance judgment of Baker J in Re ED to an authority of principle. He does so by reason of the similarity of the facts concerning the congenital disorder of EDS III. It is poor practice to attempt to rely upon decisions which are fact specific. HHJ Tyzak QC rightly rejected such a course. This ground of appeal has no merit.

14. As to (iv): Mr Feehan's arguments, written and oral, amount to nothing more than an attempt to re-run the arguments he deployed at first instance. He has not identified any relevant material which was wrongly excluded by the judge, or irrelevant material which was utilised by the judge. He can do no other than to say that the judge did not make findings in accordance with the closing submissions advanced on behalf of the parents for he patently fails to establish that the judge arrived at conclusions that were not open to him on the evidence.

15. In what is a "conscientious judgment" – adopting Mr Feehan's frequent reference to the same – the judge arrives at clear conclusions of fact; analyses the worth and impact of the medical expert opinion in relation to those facts and thereafter expresses his conclusions. They are impervious to appellate interference for the reasons indicated above.

16. Nevertheless, in order that the applicant and the mother should know that this court has considered the various criticisms cited in the notice of appeal I deal with each point briefly hereafter.

17. Bruising: The judge was not wrong to dismiss evidence of what is alleged to be "spontaneous appearance and disappearance of skin markings". The overall context for this submission is dependent upon the differences between two "body maps" completed by two clinicians. The differences were not adjudged to be "significant". The reason for preferring the accuracy of one clinician over the other was articulated in the judgment. Dr Wyatt's opinion was irrelevant. The whole context, to which the judge rightly had regard was the absence of such a phenomena either before or after the child's presentation to hospital. The opinions of Professors Hann and Pope were predicated upon a finding of fact being made to the effect that spontaneous appearance and disappearance of skin markings was established. It was not.

18. Skull fractures: There is nothing to support the assertion that "the judge appears to have relied upon soft tissue swelling or periosteal reaction as an indicator of timing for the skull fractures in this case. The judge had regard to the evidence of the birth of R and concluded that it was not of such a nature as to implicate significant birth injury. The suggestion that he should have ignored the gamut of the evidence before him simply because it is trite to observe that the true incidence of birth injuries is unknown is fanciful. The judge's findings as to the nature of the fracture was in accordance with the evidence. Mr Feehan conceded that Professor Pope's evidence was that if any variant of EDS had been inherited by R it was "very unlikely" to account for the fractures seen.

19. Rib fractures: The judge considered the skeletal survey performed on 5 July, 2012 by and report of Dr Ferguson, a consultant radiologist and the views of Dr Watt, Consultant Paediatric Radiologist giving expert evidence to the court. Dr Watt explained the reason why the fractures would not be visible on the initial radiographs of 21 June 2012. The judge did not accept that there was evidence of a "rigorous examination" of the child, in so far as that phrase implies rough handling. The judge specifically considered whether there was evidence of "a gross and unacknowledged failure in the quality of care provided "and found none either at the time of first or second skeletal survey or when bloods were taken."

20. Wrist fracture: Dr Watt's explained the reason for the apparent anomalies as to appearance of wrist fracture between first and second skeletal survey. Mr Feehan concedes: (i) that further written evidence from Dr Watt corrected an assertion made in his oral evidence as to periosteal reaction to be observed on the radiographs, and; (ii) that the judge's assessment of the audio tape recording made by the father was open to him and would negate any suggestion that medical personnel engaged in the drawing of blood were responsible for the fracture observed.

21. There is no merit in any of the points raised on behalf of the applicant under ground 4.

22. I regret to record that in my view the lack of any substance in this application has been clouded by the manner in which the skeleton argument filed in support of the Notice of Appeal has (i) failed to define the applicant's case from the findings of the court in setting out the background; (ii) failed to refer to significant pieces of the evidence relied upon by the judge; (iii) included phraseology apparently lifted from the judgment but in fact included in the applicant's closing submissions to the judge; and, (iv) contained somewhat florid assertions. I do so since as a result, a day's time estimate was assigned to this application before a three judge court, which would been far better employed in considering other urgent cases, particularly those involving children.